P.Ravi Kumar And 2 Otehrs vs Andhra Pradesh State Road ...
2022 Latest Caselaw 5726 Tel

       HONOURABLE SRI JUSTICE N. TUKARAMJI

                     MACMA.No.151 of 2013

JUDGMENT:

The claim petitioners disputing the fastening of contributory

negligence and the quantum of compensation awarded in the decree

and award dated 07.11.2012 in M.V.O.P.No.519 of 2007 passed by

the Chairman, Motor Vehicle Claims Tribunal-cum-II Additional

District Judge, Ranga Reddy District, preferred this appeal.

2. The parents and the brother of P.R.K.Bharadwaj/deceased,

who died in road accident dated 29.11.2006 filed the claim petition

seeking compensation of Rs.8,00,000/-.

3. The brief facts of the case are that on 29.11.2006 at about 9.00

a.m., P.R.K.Bharadwaj/deceased boarded APSRTC bus bearing

registration No.AP-9-Z-9376 (for short 'the bus') to go to Raja

Mahendra Engineering College, and on the way, after Gurramguda

X roads, as the driver of the bus applied sudden brakes,

Bharadwaj/deceased, who was on the foot board, fell down and at

the same time, an Auto bearing Registration No.AP-22-V-2898 (for

short 'the auto'), which was coming behind the bus, driven in rash 2 NTR,J MACMA_151_2013

and negligent manner, ran over and caused severe injuries and died.

Thus, the claim petition.

4. The learned Tribunal, after considering the material on record,

apportioned contributory negligence between the P.R.K.

Bharadwaj/deceased, the Bus and the Auto in the ratio of 30:30:40

and arrived at total compensation of Rs.6,42,000/- with interest at

7.5% per annum from the date of petition till the date of realization

against the respondents by exonerating the 3rd respondent/insurer of

the auto, on the ground that the auto driver was not holding valid

and effective driving licence.

5. In appeal, the petitioners contested that the Tribunal should

have taken into account that at peak hours, the passengers in public

transport buses even travel on the foot board to reach their

destinations and the accident occurred only due to application of

sudden breaks by the driver of the bus and fastening contributory

negligence on the deceased is improbable. Further, the Tribunal

failed to consider the future prospects and applied improper

multiplier in evaluating the compensation and filial consortium

should have been awarded to the petitioners. Further, against the 3 NTR,J MACMA_151_2013

settled position of law, though the Tribunal should have fastened the

liability to the insurer to pay compensation as the deceased was third

party to both the vehicles, even otherwise, should have ordered for

pay and recovery. Thus, prayed for re-assessment and to grant just

compensation.

6. The learned counsel for the petitioners relied on the decisions

in (i) National Insurance Company Ltd. v. Swaran Singh and others

- (2004) 3 SCC 297, (ii) Syed Sadiq etc. v. Divisional Manager,

United India Insurance Company - 2014 LawSuit(SC) 27, (iii)

United India Insurance Co.Ltd. v. K.M. Poonam and others - 2011

ACJ 917 and (iv) National Insurance Company Ltd. v. Anjana

Shyam and others - (2007) 7 SCC 445.

7. Learned Standing Counsel for the 1st respondent/A.P.S.R.T.C.

contended that there is no negligence on the part of the driver and

the deceased should not have travelled on the foot board and only

for that reason, on application of breaks, he fell down, hence there

was no negligence on the part of the driver of the bus. Further, the

amounts awarded by the Tribunal are unjustified.

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                                                            MACMA_151_2013

8. Learned counsel for the 3rd respondent/insurer of the auto

pleaded that the Tribunal had properly considered the material

placed by the petitioners and as there was no valid driving licence to

the driver of the Auto, rightly exonerated the insurer from liability.

Thus, pleaded that the award of the Tribunal on this aspect deserves

to be confirmed.

9. In this position, the points arise for determination is:

i) Whether the apportionment of contributory negligence among the deceased and the vehicles is appropriate?

ii) Whether the exoneration of liability of the 3rd respondent/insurer is sustainable?

iii) Whether the quantum of compensation awarded to the petitioners is just and proper?

10. POINT (i): It is undisputed that at relevant time,

Bharadwaj/deceased was on the footboard of the bus and as the

driver applied sudden brakes, he fell down and the auto which was

behind the bus ran over him, it caused severe injuries and

consequent death. The entries in charge sheet/Ex.A-2 are pointing

that the driver of the auto caused the accident.

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                                                           MACMA_151_2013

11. The evidence of eyewitness/ PW-3 is that when the bus was

proceeding in high speed, due to application of sudden brakes, 3 or 4

passengers who are on footboard fell down and the auto driven in

rash and negligent manner came from behind and ran over one of

the passengers (deceased) and caused fatal injuries.

12. It is common knowledge that travelling on footboard of a bus

is unsafe. Thus, the deceased's choice to travel on footboard, with

knowledge of risk can certainly be inferred. However, considering

the aspects of speed driving and application of sudden brakes, rash

and negligent driving of the auto and lack of proper care and

attention on the part of the deceased is evident.

13. Allowing footboard traveling and negligently applying sudden

brakes are contributing factors from the side of the bus. Though the

driver of the auto could have driven the vehicle carefully to avert the

accident, this care is conspicuously missing. These details are

indicating that the drivers of the bus and auto are the major

contributors. Having regard to these aspects reconsidering the ratio

of negligence modifying the same to 20:40:40 among the deceased, 6 NTR,J MACMA_151_2013

the driver of the bus and the driver of the auto respectively is found

appropriate.

14. POINT (ii): The Tribunal had exonerated the insurer of the

auto on the ground that the driver was not holding valid and

effective driving licence by the time of accident and the offending

vehicle was charge sheeted for the offence under Section 181 of the

Motor Vehicles Act.

15. It is settled proposition that the burden to prove that the

driver of offending vehicle had no valid driving licence and it

amounts to policy violation would be on the insurer/3rd respondent.

The 3rd respondent/insurer of the auto examined its employee as

RW-1 to reiterate this fact. However, the final report/Ex.A-2 which

has been relied upon by the petitioners to prove the incident and

negligent driving of the vehicle is also indicating that the driver had

no valid driving licence. Since the document has been accepted and

the averments therein are referring the aspect of driving licence of

the driver, the same shall be taken into account. Therefore, it shall be

held that the respondent had prima facie established that the driver

was not holding the valid driving licence at relevant time. The other 7 NTR,J MACMA_151_2013

aspect requires consideration is whether the owner had taken due

care in verifying the driving licence of the driver before handing over

the vehicle. To note this fact would be within the specific knowledge

of the owner, but the insured/2nd respondent chose to remain silent,

as such by drawing adverse inference, it shall be held that the 3rd

respondent/insurer could make out the driver of the auto was not

holding valid and effective driving licence at relevant hour.

16. Be that as it may, as the deceased is third party to the auto and

admittedly as the insurance policy is covering the risk of the third

party and the dictum of the Hon'ble Supreme Court in National

Insurance Company Limited v. Swaran Singh and others1, I am of the

considered opinion that though there is policy violation directing the

3rd respondent/insurer to satisfy the award with a liberty to recover

the amount from the owner/2nd respondent would be proper to

meet the ends of Justice. Accordingly the liability among the 2nd and

3rd respondent/owner and insurer of the auto is arranged.

17. POINT (iii): With regard to compensation, the

petitioners claimed that by the relevant date their son/deceased was

((2004) 3 SCC 297 8 NTR,J MACMA_151_2013

aged 16 years and was pursuing 1st year B. Tech, however he was

earning Rs. 5,000/- per month by giving tuitions. However,

considering the date of birth reflected in the Secondary School

Certificate/Ex. A-7, the age of deceased can be taken at 17 years and

though no material is placed to substantiate the tuitions and

earnings, the tribunal by considering the educational qualification

and possible earning capacity notionally believed the monthly

income at Rs. 5,000/-. As this conclusion is found reasonable, the

same is affirmed.

18. The Hon'ble Supreme Court in National Insurance

Company Ltd. vs. Pranay Sethi and others.2 held that while

computing the loss of dependency the future prospects of income

shall also be included. Thus, considering the age and occupation

40% of the income has to be added towards the further prospects.

Further, as the deceased was bachelor, as per the directions of the

dictum in Sarla Verma & Ors Vs. Delhi Transport Corp. & Anr3,

half of the income shall be deducted for personal expenditure, thus

the annual contribution of the deceased to the petitioners would be

(2017) 16 SCC 860

(2009) 6 SCC 121 9 NTR,J MACMA_151_2013

of Rs.42,000/-. If this amount is multiplied with the relevant

multiplier to the age of the deceased i.e., 18, the sum would come to

Rs. 7,56,000/-. The petitioners are entitled to this amount as loss of

dependency.

19. In addition, the petitioners are also entitled for Rs.15,000/-

towards funeral expenses, Rs.15,000/- towards loss of estate,

Rs.40,000/- each to 1st and 2nd petitioners towards filial consortium.

Thus, in all the petitioners are entitled to Rs.8,66,000/-.

20. In accordance with the allocated ratio of disability, the

deceased shall borne 20% of compensation amount i.e.

Rs.1,73,200/-, the 1st and 2nd respondents are liable to pay 40% of

compensation amount i.e. Rs.3,46,400/- each. Thus, the petitioners

1 and 2 are entitled to total compensation of Rs.6,92,800/-.

21. For the aforesaid reasons, the Appeal is allowed in part as

follows:

i) The 1st respondent/APSRTC is liable to pay Rs.3,46,400/-(Rupees three lakhs forty six thousand four hundred only) with interest at 7.5% per annum from the date of petition till realization with proportionate costs.

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ii)    The 2nd respondent/owner of the auto is liable to

pay Rs.3,46,400/-(Rupees three lakhs forty six thousand four hundred only) with interest @ 7.5% per annum from the date of petition till realization with proportionate costs; However, the 3rd respondent/insurer is directed to pay the awarded compensation first, with a liberty to recover the amount paid from the 2nd respondent/owner, without filing fresh suit and by executing this decree.

iii) The 1st, 2nd and 3rd respondents are directed to deposit the awarded amount within one month from the date of receipt of a copy of this judgment;

iv) The apportionment among the petitioners 1 and 2 shall be as per tribunal award.

v) On deposit of the awarded amount, the petitioners 1 and 2 are permitted to withdraw entire apportioned amount.

vi) In the above terms, the impugned award stands modified.

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As a sequel, miscellaneous petitions, pending if any, shall stand

closed.

_________________ N.TUKARAMJI, J Date:09.11.2022 ccm